2.10 Information sharing and confidentiality
- Confidential information and the public interest
- Consent to information sharing
- Where information may be shared without consent
- Disclosure of information with consent
- Disclosure of information without consent
- Further guidance
- Child Sex Offender Disclosure Scheme
- The Domestic Violence Disclosure Scheme
Sharing information is vital for safeguarding and promoting the welfare of children to facilitate early intervention to ensure that children with additional needs receive the services they require and that children are protected from abuse and neglect.
Often, it is only when information from a number of sources has been shared and is then put together that it becomes clear that a child is at risk of suffering significant harm.
A key factor in many Serious Case Reviews has been a failure to record information, to share it, to understand the significance of the information shared, and to take appropriate action in relation to known or suspected abuse or neglect.
Practitioners are often concerned about sharing information and uncertain about when they can do so lawfully. This procedure provides a summary of the general principles to be followed by all practitioners on this issue.
The general principle is that consent should be obtained from children (depending on their age and understanding) and their families before information about them is shared with others.
Confidential information and the public interest
Confidential information is information of some sensitivity, which is not public knowledge, and which has been shared in a relationship where the person giving the information understood that it would not be shared with others.
Confidence is only breached where the sharing of confidential information is not authorised by the person who provided it or to whom it relates. If the information was provided on the understanding that it would be shared with a limited range of people or for limited purposes, then sharing in accordance with that understanding will not be a breach of confidence. Similarly, there will not be a breach of confidence where there is explicit consent to the sharing.
Even where sharing of confidential information is not authorised, it may lawfully be shared if this can be justified in the public interest. Seeking consent should be the first option, if appropriate. Where consent cannot be obtained to the sharing of the information or is refused, or where seeking it is likely to undermine the prevention, detection or prosecution of a crime, the question of whether there is a sufficient public interest must be judged by the practitioner on the facts of each case. Therefore, where a practitioner has a concern about possible significant harm to a child, he or she should not regard refusal of consent as necessarily precluding the sharing of confidential information.
A public interest can arise in a wide range of circumstances, for example, to protect children or other people from harm, to promote the welfare of children or to prevent crime and disorder. The key factor in deciding whether or not to share confidential information is proportionality, i.e. whether the proposed sharing is a response in proportion to the need to protect the public interest in question. In making the decision, the practitioner must weigh up what might happen if the information is shared against what might happen if it is not, and make a decision based on a reasonable judgement.
Consent to information sharing
When any agency considers that it will need to share information in order to promote the wellbeing of a child under 16, consent should be obtained from a parent or other person with parental responsibility.
In relation to young people of 16 and over, they have the right to give and withhold consent independently of their parents’ views.
Where a child is under 16, he or she may wish to give or withhold consent independently of and in contradiction to their parents’ views. This wish should be upheld where the child is considered to be of sufficient understanding to give informed consent. It is for the practitioner working with the child to make this judgement as to whether the child can appreciate what is being proposed, having regard to the child’s age and level of understanding. The practitioner should also seek advice from his or her line manager or other relevant person in the organisation or agency. Further guidance can be found in Information sharing: Advice for practitioners providing safeguarding services to children, young people, parents and carers (July 2018).
Therefore, practitioners should explain to children and families when they first receive services, openly and honestly, what and how information will, or could be shared and why, and seek their consent about with whom and when information can be shared.
Consent must also specify with whom information will be shared. It cannot be assumed that a person is willing for information to be shared simply because they have not stated to the contrary.
This must be informed consent and practitioners must check that children, young people and parents have understood their explanation.
The person giving consent may decide to put restrictions on with whom personal information may be shared and if so, This should be clearly recorded.
Their consent should be obtained in writing.
The Consent Form should be securely retained on the individuals file/record and relevant information recorded on any electronic systems to ensure that other members of staff are made aware of the consent and any limitations. Copies of completed and signed Consent Forms should also be left with the individuals concerned.
Consent must be obtained every time an episode of working with a family begins. It should also be regarded as good practice to seek ‘fresh’ consent where there are significant changes in the circumstances of the person or the work being undertaken.
Where information may be shared without consent
In some circumstances, it is not appropriate to seek consent before sharing information with others and/or information can be shared where consent has been refused. This may be the case where making a referral to Children’s Social Work Services under the Referrals procedure.
Information cannot be shared without the consent of the parent, young person of 16 or over or a child unless one or more of the following circumstances apply:
- Where failure to share information may result in harm to the child or young person.
- Where failure to share information may result in serious harm to an adult.
- Where failure to share information may result in a crime being committed.
- Where failure to share information may result in a crime not being detected, including where seeking consent might lead to interference with any potential investigation.
- Where the young person is deemed to have insufficient understanding to withhold consent and therefore cannot override parental consent.
- Where the young person is deemed to have sufficient understanding to override the parental refusal to give consent.
- Where there is a statutory duty or Court Order requiring information to be shared.
Practitioners must always consider the safety and welfare of a child as the overriding consideration when making decisions on whether to share information about the child without consent. In many instances a failure to pass on information, that might have prevented a child suffering harm, would be far more serious and dangerous than an incident of unjustified disclosure.
Practitioners should seek advice and consultation when in doubt. Advice must be sought and consultation must take place within a time frame which is not detrimental to the child’s interests.
Practitioners must share information when they are in situations where there is a statutory duty or Court Order requiring the information to be shared. In such situations, information should be shared even if consent has not been given. However, wherever possible, the individual concerned should be informed about the information to be shared, the reasons and to whom it will be disclosed.
Disclosure of information with consent
Information should only be shared on a need-to-know basis, i.e. necessary for the purpose for which they are sharing it and shared only with those people who need it.
Practitioners should ensure that the information they share is accurate, factual and up-to-date; where opinion is given, this should be made clear to the recipient.
Practitioners should always record the disclosure to include:
- When the disclosure was made.
- Who made the disclosure.
- Who the disclosure was made to.
- How the disclosure was made.
- What was disclosed.
Disclosure of information without consent
Disclosure of information without consent must be justifiable, as set out above.
Where information is disclosed without consent, the decision and the reasons for it must be recorded, as well as the matters listed above.
In addition, the person making the disclosure must advise the recipient that consent has been refused or has not been sought.
The recipient of information that has been disclosed without consent should record:
- the details of the information received
- who provided it
- that it was provided without consent and the reasons given (if known)
- any restrictions placed on the information that has been given, for example ‘Not to be disclosed to service user’.
For further detailed guidance, see Information sharing: Advice for practitioners providing safeguarding services to children, young people, parents and carers (July 2018).
Child Sex Offender Disclosure Scheme
The Child Sex Offender Review (CSOR) Disclosure Scheme is designed to provide members of the public with a formal mechanism to ask for disclosure about people they are concerned about, who have unsupervised access to children and may therefore pose a risk. This scheme builds on existing, well established third-party disclosures that operate under the Multi-Agency Public Protection Arrangements (MAPPA).
Police will reveal details confidentially to the person most able to protect the child (usually parents, carers or guardians) if they think it is in the child’s interests.
The scheme is managed by the police and information can only be accessed through direct application to them.
If a disclosure is made, the information must be kept confidential and only used to keep the child in question safe. Legal action may be taken if confidentiality is breached. A disclosure is delivered in person (as opposed to in writing) with the following warning:
- 'That the information must only be used for the purpose for which it has been shared i.e. in order to safeguard children;
- The person to whom the disclosure is made will be asked to sign an undertaking that they agree that the information is confidential and they will not disclose this information further;
- A warning should be given that legal proceedings could result if this confidentiality is breached. This should be explained to the person and they must sign the undertaking’ (Home Office, 2011, p16).
If the person is unwilling to sign the undertaking, the police must consider whether the disclosure should still take place.
The Domestic Violence Disclosure Scheme
See also: Domestic Violence and Abuse procedure.
The Domestic Violence Disclosure Scheme (DVDS) gives members of the public a formal mechanism to make enquires about an individual who they are in a relationship with, or who is in a relationship with someone they know, where there is a concern that the individual may be violent towards their partner. This scheme adds a further dimension to the information sharing about children where there are concerns that domestic violence and abuse is impacting on the care and welfare of the children in the family.
Members of the public can make an application for a disclosure, known as the ‘right to ask’. Anybody can make an enquiry, but information will only be given to someone at risk or a person in a position to safeguard the victim. The scheme is for anyone in an intimate relationship regardless of gender.
Partner agencies can also request disclosure is made of an offender’s past history where it is believed someone is at risk of harm. This is known as ‘right to know’.
If a potentially violent individual is identified as having convictions for violent offences, or information is held about their behaviour which reasonably leads the police and other agencies to believe they pose a risk of harm to their partner, a disclosure will be made.